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Gersh v. Anglin

United States District Court, D. Montana, Missoula Division

January 18, 2019

TANYA GERSH, Plaintiff,
ANDREW ANGLIN, Defendant, and STATE OF MONTANA, Defendant-Intervenor.


          Jeremiah C. Lynch United States Magistrate Judge

         Plaintiff Tanya Gersh has moved pursuant to Federal Rule of Civil Procedure 37 to compel Defendant Andrew Anglin to provide complete responses to her first set of interrogatories.[1] Gersh also seeks fees and costs under Rule 37. Gersh's motion to compel is granted in part and denied in part as set forth below.

         I. Legal Standard

         The Court has broad discretion to manage discovery. Hunt v. County of Orange, 672 F.3d 606, 616 (9th Cir. 2012). Parties are generally entitled to “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed.R.Civ.P. 26(b)(1). The information “need not be admissible in evidence to be discoverable.” Fed.R.Civ.P. 26(b)(1).

         For discovery purposes, relevance is construed broadly to include any matter that “bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). See also Dewidar v. National Railroad Passenger Corp., 2018 WL 280023 *2 (S.D. Cal. Jan. 3, 2018) (applying Oppenheimer's relevance standard under current version of Rule 26(b)(1)). In assessing proportionality, courts consider “the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed.R.Civ.P. 26(b)(1).

         “Rule 37 of the Federal Rules of Civil Procedure provides a mechanism by which a party seeking discovery may request an order compelling the opposing party to fulfill its discovery obligations.” Carlson v. Fedex Ground Package System, Inc., 2012 WL 4760889 *1 (D. Mont. Sept. 12, 2012). If a party fails to respond to interrogatories or requests for production, the party seeking discovery may move for an order compelling an answer. Fed.R.Civ.P. 37(a)(3)(B); Carlson, 2012 WL 47608889 *1. “[A]n evasive or incomplete disclosure, answer, or response” to a discovery request “must be treated as a failure to disclose, answer, or respond.” Fed.R.Civ.P. 37(a)(4).

         While the moving party has the burden of showing that the discovery sought is relevant, “the parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.” Nei v. Travelers Home and Marine Insurance Company, 326 F.R.D. 652, (D. Mont. 2018). The party resisting discovery bears “the burden of clarifying, explaining, and supporting its objections” and showing why the discovery should not be allowed. DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002) (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)).

         II. Background

         Gersh filed this action on April 18, 2017, asserting state law claims against Anglin for invasion of privacy, intentional infliction of emotional distress, violations of Montana's Anti-Intimidation Act, and punitive damages. Gersh sought and obtained two extensions of time to effect service, and on November 14, 2017, defense counsel entered an appearance on Anglin's behalf. Approximately two weeks later, Anglin moved to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b) for lack of subject matter jurisdiction, lack of personal jurisdiction based on insufficient service of process, and failure to state a claim for relief. On December 15, 2017, the Court issued an order staying discovery pending resolution of the of the jurisdictional challenges raised in Anglin's motion to dismiss. (Doc. 41). Those challenges ultimately failed, and on May 24, 2018, the Court issued an order terminating the discovery stay. (Doc. 95).

         On June 7, 2018, Gersh served her first set of interrogatories and requests for production on Anglin. (Docs. 113-1; 124-1). As provided in Fed. R. Civ. P.33(b)(2), Anglin's responses were due 30 days later. (Doc. 113-2; 124-2). On the July 9, 2018 deadline, Anglin served his initial discovery responses consisting entirely of objections and filed a motion for a protective order seeking a 60-day extension of time to provide substantive responses. On July 13, 2018, the Court entered an order giving Anglin until August 10, 2018, to provide complete responses to Gersh's interrogatories and until August 27, 2018, to provide complete responses to her requests for production. (Doc. 103).

         Anglin served his supplemental responses to Gersh's interrogatories on August 11, 2018 - missing the extended deadline by one day - and timely served his supplemental responses to Gersh's requests for production on August 27, 2018. The parties unsuccessfully met and conferred regarding the accuracy and completeness of Anglin's supplemental responses, and Gersh filed the pending motions to compel.

         III. Discussion

         Gersh's First Set of Interrogatories contained twelve separate interrogatories. Of those, Gersh moves to compel Anglin to immediately answer in full, and supplement as necessary his answers to, Interrogatories 1-11.[2] (Doc. 112, at 1). Gersh argues Anglin's objections to these interrogatories are waived due either to untimeliness or their boilerplate nature. Even if they are not waived, Gersh argues Anglin's objections are unavailing on the merits. Finally, to the extent Anglin has provided substantive answers, Gersh maintains those answers are demonstrably incomplete and evasive.

         A. Timeliness of Objections

         Gersh first argues that Anglin has waived all grounds for any objections asserted after the August 10, 2018, extended deadline for providing complete answers to her interrogatories. This argument relates specifically to Interrogatories 6, 7, and 9.

         As noted above, Anglin served his supplemental answers and objections to Gersh's first set of interrogatories on August 11, 2018 - one day after the extended deadline established by the Court. Anglin's supplemental answers reiterated the objections set forth in his initial responses, and also asserted a new ground for failing to answer Interrogatories 6, 7, and 9. In particular, Anglin indicated that he would provide responsive information to these three interrogatories “subject to an appropriate protective order that excludes any person affiliated with the Southern Poverty Law Center from obtaining such information due to the dangerous propensities of its members.” (Doc. 113-3, at 9-13). Anglin argues that because the Southern Poverty Law Center is a non-profit advocacy organization, its non-attorney staff are not bound by the rules of professional conduct. Anglin fears that without a protective order, those non-attorney staff members might be able to access and misuse the information provided in his discovery responses.

         Gersh argues Anglin waived this objection because it was not timely raised. Under Fed.R.Civ.P. 33(b)(4), any ground for objecting to an interrogatory “not stated in a timely objection is waived unless the court, for good cause, excuses the failure.” Local Rule 26.3(a)(4) similarly provides that failure to object to an interrogatory “within the time fixed by the rules, or within the time to which the parties have agreed, constitutes a waiver of any objection.” Consistent with these rules, the Ninth Circuit recognizes “that a failure to object to discovery requests within the time frame required constitutes a waiver of any objection.” Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992). See also Usrey v. Deyott, 2013 WL 2561591, *1 (D. Mont. June 11, 2013).

         Anglin does not dispute that his supplemental answers and objections to Gersh's interrogatories were one day late, which means that his newly raised objections were untimely. Instead, Anglin argues Gersh was not prejudiced by the minimal delay and asks the Court to excuse his untimely objections for good cause. In a supporting declaration, defense counsel states that because Anglin does not live in the United States it was difficult to coordinate with him on his discovery responses. (Doc. 117-1, ¶ 4). But Anglin has claimed international residency since this case was filed in April 2017, thereby giving him more than enough time to establish an effective means of communicating with his attorneys. In addition, defense counsel explains that the primary paralegal for his office had recently left the firm, further complicating the logistics of having Anglin's discovery responses properly executed in time. (Doc. 117-1, ¶ 6). Such changes in law office staff are not uncommon, however, and the Court finds that under the circumstances Anglin has not established good cause for failing to meet the extended deadline. Because Anglin did not serve his supplemental responses to Gersh's interrogatories until after the August 10, 2018, deadline for doing so, his newly raised objections to Interrogatories 6, 7, and 9 are untimely.

         In addition, it is worth noting that Anglin had ample time to file a motion seeking such a protective order instead of refusing to answer Gersh's interrogatories without one. Anglin was served with Gersh's interrogatories on June 7, 2018, and had until August 10, 2018 to provide complete responses under the extended deadline established by the Court. Anglin could have moved for a protective order during that two-month period, but for whatever reason did not do so. Thus, in addition to being untimely, Anglin's newly raised objections to Interrogatories 6, 7, and 9 are waived.

         B. Boilerplate Objections

         Gersh next argues that virtually all of Anglin's objections should be considered waived due to their boilerplate nature.

         “The grounds for objecting to an interrogatory must be stated with specificity.” Fed.R.Civ.P. 33(b)(4). “The recitation of ‘boilerplate objections or blanket refusals' therefore is not consistent with the requirements of the discovery rules.” Nei v. Travelers Home and Marine Insurance Company, 326 F.R.D. 652, 656 (D. Mont. 2018) (quoting Burlington N. v. Santa Fe Ry. Co. v. U.S. Dist. Ct., 408 F.3d 1142, 1149 (9th Cir. 2005)). The Local Rules similarly require that the party resisting discovery follow any objections with “a statement of reasons, ” thereby requiring that objections be made with specificity. The objecting party bears the burden of showing that a discovery request is improper. Nei, 326 F.R.D. at 656. “Where a party's objections are themselves vague and impermissibly overbroad, and no specifics are given, the objecting party fails to carry its burden.” Nei, 326 F.R.D. at 656-57 (quoting Russell v. Daiichi-Sankyo, Inc., 2012 WL 1161435, *2 (D. Mont. 2012)). Nevertheless, even when the objecting party fails to carry its burden, the Court has an obligation to review the discovery requests to ensure that they are not frivolous. Nei, 326 F.R.D. at 657 (citing Moreno Rivera v. DHL Global Forwarding, 272 F.R.D. 50, 57 (D.P.R. 2011)).

         In his initial objections and supplemental answer and objections, Anglin lists five general objections to all twelve interrogatories and then incorporates those objections by reference into each specific response. He objects generally to each interrogatory to the extent it (1) seeks to impose duties on Anglin beyond the scope of the Federal Rules of Civil Procedure or the Local Rules; (2) seeks confidential, proprietary, or sensitive business information; (3) seeks information protected by the attorney-client privilege or work product doctrine; (4) seeks information not within his possession, custody, or control; (5) is vague, ambiguous, overly broad, or unduly burdensome.

         Anglin makes no attempt to explain how these general objections relate to particular interrogatories or are supported by the particularized facts. Without some such explanation, these objections are so general that the Court cannot meaningfully evaluate them on their merits. Accordingly, the Court finds they are waived.

         Anglin additionally objects to Interrogatories 1-11 individually on the following ground: “Defendant objects to this interrogatory as irrelevant and disproportionate to the needs of the case, as it makes no attempt to narrow itself to information related to any claim or defense of any party.” (Doc. 113-3, at 4-15). Anglin further objects Interrogatories 1, 2, and 9 on the basis that each one is “overbroad and unduly burdensome, as it is not limited in scope to any claim or defense, or even the general subject matter of this litigation.” (Doc. 113-3, at 4-5; 12). Anglin similarly objects to Interrogatory 4 “as overly broad and unduly burdensome, ” and Interrogatories 5-11 as “as vague, overbroad and unduly burdensome.” (Doc. 113-3, at 7-15).

         To the extent Anglin does not explain how these objections relate to the individual interrogatories at issue or provide any supporting argument, the objections lack the specificity required under the federal and local rules. Such nonspecific objections asserted without any further explanation are insufficient, and the Court considers them waived. While most of Anglin's objections fall into this category, he does provide some additional specificity in his objections to Interrogatories 3, 5, 9, 10, and 11. To the extent Anglin provides sufficient detail, the Court does not consider those objections waived. Likewise, Anglin provides supporting argument for some of his otherwise boilerplate objections in his brief in response to the motion to compel. To the extent Anglin has done so, the Court exercises its discretion in favor of considering Anglin's objections on the merits.

         In a footnote, Gersh argues that Anglin's practice of first objecting to each interrogatory and then responding “subject to” his various objections is confusing and evasive, and provides a basis for considering all of Anglin's objections waived. (Doc. 113, at 14). Courts within this district have previously disapproved the practice of providing boilerplate objections to discovery requests and then responding because doing so confuses the issue of “whether the requested information was provided in full.” Russell v. Daiichi-Sankyo, Inc., 2012 WL 1161435 *4 (D. Mont. Apr. 6, 2012). While this Court similarly disapproves the practice and Anglin's use of it here, the Court will not deem Anglin's objections waived on this basis. Thus, the Court addresses the merits of any unwaived objections and the sufficiency of Anglin's responses to each interrogatory below.

         C. Individual Interrogatories

Interrogatory 1: List any and all usernames under which you posted any comments in the forums for ...

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